The Ombudsman's final decision:
Summary: it has taken the Council 13 months to arrange the occupational therapy in B’s Education, Health and Care Plan. This delay is fault. I have recommended a remedy to address the injustice caused.
- Mrs M complains about delay by the Council arranging occupational therapy for her son, B. She is unhappy with the Council’s response to her complaint.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered:
- information provided by Mrs M;
- information provided by the Council.
What I found
- Mrs M’s son, B, has an Education, Health and Care Plan maintained by the Council. The Council issued his latest Plan on 5 February 2021. The Plan says B shall have weekly sessions with a specialist occupational therapist for two terms.
- Mrs M complained to the Council on 13 April 2021. She said the occupational therapy was not being provided.
- The Council responded on 10 May 2021. It said it had invited B’s school to apply for funding so it could arrange the therapy itself, but the school had declined, preferring the Council to make the necessary arrangements. The Council explained the therapy was not offered by the NHS, so it had to commission it itself. The Council said that local therapists had advised they were not taking new clients or were not providing face-to-face services because of the pandemic. The Council said it was working to provide a solution and apologised for the delay.
- Mrs M remained dissatisfied and asked for her complaint to be considered at the next stage of the Council’s complaints process.
- A senior council officer responded on 13 October 2021. He said a solution had been identified and arrangements made. He apologised for the delay and explained the work the Council was doing to improve communication with parents. He offered a payment of £200 to acknowledge the delays and the inconvenience caused.
- Mrs M complained to the Ombudsman on 27 October 2021. She said nobody from the Council had been in touch to explain what arrangements had been made for B’s occupational therapy.
Education, Health and Care Plans: the law
- A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
- Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
- This is an absolute and non-delegable duty. There is no "best endeavours" defence if the Council is unable to secure the provision. (R (on the application of N) v North Tyneside Borough Council  EWCA Civ 135)
- Between 1 May 2020 and 31 July 2020, emergency Coronavirus legislation meant there was only a “reasonable endeavours” duty on the Council to secure provision. However, that does not affect Mrs M’s complaint.
The Council’s response to my enquiries
- The Council responded to my enquiries on 18 January 2022. It explained that it found an Occupational Therapist to provide the Occupational Therapy in B’s EHC Plan, but the therapist was not able to start until March 2022.
- I asked further questions about the arrangements in the County for delivering Occupational Therapy, and what the Council was doing to tackle any problems.
- The Council said it maintains 6,000 Education, Health and Care Plans. It was unable to say how many of the plans required OT.
- The Council does not employ any Occupational Therapists.
- The Council said the NHS provides OT services to children who attend special schools. It could not say how many children this was.
- The Council said the national shortage of Occupational Therapists (and Speech and Language Therapists) is a problem. The Council said it was:
- working with the NHS to audit demand for OT services;
- improving commissioning arrangements, for example ‘block booking’ private OTs; and
- contacting other councils to learn lessons from their experience.
- There has been considerable delay in providing the occupational therapy in B’s EHC Plan. By the time the therapist is able to start, the provision will have been delayed by 13 months.
- This delay has caused B injustice. He will have been without the occupational therapy the Council decided he needed to address his special educational needs for 13 months.
- Mrs M said the Council’s response to my enquiries was the first she knew of the arrangements, and she still has not heard from the OT due to deliver B’s provision.
- We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
- I recommended the Council:
- apologises to Mrs M for the delay in arranging B’s occupational therapy.
- does everything it can to secure the occupational therapy B needs without further delay and ensures it keeps Mrs M informed about the arrangements;
- liaises with Mrs M to consider whether there are any alternative activities the Council could fund as an interim measure should there be any further delay arranging the OT; and
- makes a symbolic payment of £100 per month for each month B has been without the occupational therapy in his EHC Plan.
- I have completed my investigation as the Council accepts my recommendations.
Investigator's decision on behalf of the Ombudsman